Citation Nr: 1752729 Decision Date: 11/16/17 Archive Date: 11/22/17 DOCKET NO. 15-37 540 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to an effective date earlier than September 19, 2014, for the grant of service connection for asbestosis with pulmonary fibrosis. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M.W. Kreindler, Counsel INTRODUCTION The Veteran served on active duty from June 1945 to July 1946, and from November 1950 to February 1952. The Veteran died in April 2017; the appellant is his surviving spouse and has been substituted as the appellant for purposes of processing the appeal to completion. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. On September 19, 2014, the Veteran submitted a fully developed claim for compensation for pulmonary fibrosis. 2. The Veteran's asbestosis with pulmonary fibrosis manifested on August 19, 2014. CONCLUSION OF LAW The criteria for an effective date of August 19, 2014, but no earlier, for the grant of service connection for asbestosis with pulmonary fibrosis have been met. 38 U.S.C. §§ 5107, 5110 (West 2014); 38 C.F.R. §§ 3.102, 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The claims file contains the Veteran's VA and private treatment records. The Board has otherwise perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the claim. Neither the appellant nor her representative have raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Criteria & Analysis On September 19, 2014, the Veteran submitted VA Form 21-526EZ, Fully Developed Claim (FDC) for compensation, seeking service connection for pulmonary fibrosis. Applying the general rules governing the assignment of effective dates, the VA assigned an effective date of September 19, 2014, the date the claim was received by VA. See 38 U.S.C. § 5110; 38 C.F.R. § 3.400 (b)(2)(i). There is no assertion that a claim was filed prior to September 19, 2014; however, it is asserted that the claim should be considered under the FDC provisions for assignment of an effective date. Section 506 of PL 112-154 establishes different rules for the assignment of effective dates that are specific to claims decided under the FDC process. Section 506 of PL 112-154 was codified as 38 U.S.C. § 5110 (b)(2)(A). The rules governing the assignment of effective dates for claims decided under the FDC process apply to the present claim. 38 U.S.C. § 5110 (b)(2)(A). 38 U.S.C. § 5110 (b)(2)(A) provides that "the effective date of an award of disability compensation to a veteran who submits an application therefor that sets forth an original claim that is fully-developed as of the date of submittal shall be fixed in accordance with the facts found, but shall not be earlier than the date that is one year before the date of receipt of the application." A claim of service connection submitted through the FDC process by definition meets the statutory requirement of "an original claim that is fully-developed." See 38 U.S.C. § 5110(b)(2)(B). 38 U.S.C. § 5110 (b)(2)(A) does not establish that the effective date for claims filed under the FDC process should automatically be one year prior to the date of the filing of the formal claim for service connection. Instead, the statute states that the effective date shall be fixed in accordance with the facts found, so long as the date established by the facts is not earlier than one year prior to the date of the receipt of the application for service connection. Thus, the earliest possible effective date for the award of service connection for asbestosis with pulmonary fibrosis could be September 19, 2013, which is one year prior to the date of the claim. However, in this case, the medical evidence reflects a diagnosis of right sided pneumothorax and bilateral reticular changes versus fibrosis on August 19, 2014. 11/19/2014 Medical Treatment Record-Non-Government Facility. A diagnosis related to asbestosis with pulmonary fibrosis is not shown in the medical records prior to this date. As a diagnosis is reflected on this date and such date was in the one year window per the FDC statute, the Board will assign an effective date of August 19, 2014, to the grant of service connection for asbestosis with pulmonary fibrosis. As there is no medical evidence which reflects that this condition was shown prior to this date, there is no basis for assignment of an effective date prior to August 19, 2014. ORDER Entitlement to an effective date of August 19, 2014, but no earlier, for the grant of service connection for asbestosis with pulmonary fibrosis is granted. ____________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs